The claim herein alleges that the claimants sustained personal injuries when
the vehicle in which they were riding was struck by a motor vehicle operated by
a New York State Trooper. Defendant moves for summary judgment dismissing the
claim on the ground that the State is immune from liability for actions of State
Trooper Angela Sabarese, the operator of the State Police vehicle, pursuant to
Vehicle and Traffic Law § 1104 (e). Defendant argues in this regard that
the state trooper was driving an authorized emergency vehicle while involved in
an emergency operation at the time of the subject incident thereby precluding
liability for conduct which does not rise to the level of recklessness. On
January 2, 2004 the state trooper barracks located on Route 44-55 received a 911
call regarding a personal injury auto accident in the nearby area. Intending to
respond to the 911 call Trooper Sabarese exited the barracks, entered a marked
state police vehicle and came to a stop at or near the exit to the barracks
parking lot located on the northern side of Route 44-55. Route 44-55 runs
east and west with one travel lane in each direction divided by a double yellow
line. Claimant Joseph Spano ("claimant") was operating a vehicle in which his
wife, the claimant Marie T. Spano, was a passenger. The claimants' vehicle was
traveling west on Route 44-55 when Mr. Spano observed a state police vehicle
attempting to exit the driveway of the barracks to his right. Having just
passed a three or four car accident nearby, Mr. Spano brought his vehicle to a
stop and flashed his lights for the trooper to proceed while at the same time
pointing in the direction of the accident which he had just passed. As the
state trooper was about to execute a left hand-hand turn out of the barracks
driveway an unknown pick-up truck, which had initially come to a stop behind the
claimants' vehicle, passed the claimants on the left. With these facts, there
is no dispute.

According to the deposition testimony of Trooper Sabarese, the truck which
passed the claimant on the left caused her to stop the police car at a point
where the vehicle's front wheels were partially in the westbound lane of travel
for approximately five seconds while she attempted to discern the vehicle's
license plate number. Trooper Sabarese then proceeded to continue making a left
turn intending to enter the eastbound lane of travel and struck the right rear
quarter panel of the claimants' vehicle. State Trooper Sabarese testified that
she believed that her emergency lights were activated although she was not
certain.

Claimant's deposition testimony differs from the account given by Trooper
Sabarese in that he testified that the emergency lights on the police vehicle
were not activated. Mr. Spano also testified that the state police vehicle was
stopped in the barracks driveway at the time it pulled out onto Routes 44-55 and
came in contact with his vehicle. When asked why he decided to continue in a
westbound direction after stopping and flashing his lights at the trooper, Mr.
Spano stated "Oh, because she was sitting still and I proceeded to go. I waited
five, six seconds and she just stood there". Both Trooper Sabarese and Mr.
Spano agreed that approximately five seconds elapsed between the time Mr. Spano
brought his vehicle to a stop and flashed his lights at the trooper and the time
of impact. Both individuals testified that their vehicles traveled only a few
feet from their stopped positions prior to impact. The state trooper testified
that the impact was minor and that she was uncertain whether the vehicles had
come in contact. When she inspected the claimants' vehicle the only damage
she observed was a small dent and some paint which had been rubbed off the right
rear quarter panel of claimants' vehicle.

Vehicle and Traffic Law § 1104 grants drivers of authorized emergency
vehicles engaged in an emergency operation a qualified privilege to disregard
traffic rules as long as certain safety precautions are observed (see,
Vehicle and Traffic Law § 1104 [b][1]-[4]; Szczerbiak v Pilat, 90
NY2d 553, 556). Section 1104 (e) provides that "[t]he foregoing provisions
shall not relieve the driver of an authorized emergency vehicle from the duty to
drive with due regard for the safety of all persons, nor shall such provisions
protect the driver from the consequences of his reckless disregard for the
safety of others." As articulated by the Court of Appeals in Saarinen v
Kerr, (84 NY2d 494), this standard

demands more than a showing of a lack of 'due care under the
circumstances'– the showing typically associated with ordinary negligence
claims. It requires evidence that 'the actor has intentionally done an act of
an unreasonable character in disregard of a known or obvious risk that was so
great as to make it highly probable that harm would follow' and has done so with
conscious indifference to the outcome (84 NY2d at 501, quoting Prosser
and Keeton, Torts § 34, at 213 [5th ed]).

Thus with the enactment of section 1104(e) the legislature struck a balance
between the needs of emergency personnel to perform their duties "with necessary
dispatch and dispensation" and the "potential for liability as a protection for
the general public against disproportionate, overreactive conduct" (Campbell
v City of Elmira, 84 NY2d 505, 512).

In support of its motion for summary judgment, defendant argues that the state
trooper was operating an authorized emergency vehicle during an emergency
operation and that the facts of this case may not, as a matter of law, give
rise to a finding of recklessness. Claimants, on the other hand, argue that the
state police vehicle was not engaged in an emergency operation thereby
permitting the imposition of liability upon a showing of ordinary negligence.
In support of this argument, claimants point to the fact that the police car did
not have its emergency lights activated and that nowhere in the trooper's
deposition testimony did she state that she received a specific request to
respond to the accident which was the subject of the 911 call or that she had
notified anyone that she was responding to the call.

Vehicle and Traffic Law § 114-b provides:

§ 114-b. Emergency operation

The operation, or parking, of an authorized emergency
vehicle[1], when such vehicle is engaged in
transporting a sick or injured person, transporting prisoners, delivering blood
or blood products in a situation involving an imminent health risk, pursuing an
actual or suspected violator of the law, or responding to, or working or
assisting at the scene of an accident, disaster, police call, alarm of fire,
actual or potential release of hazardous materials or other emergency.
Emergency operation shall not including returning from such service.

It is clear from the language of the statute that the term emergency operation
includes the operation of an authorized emergency vehicle while responding to a
police call or the scene of an accident. Although "police call" is not defined
in the Vehicle and Traffic Law the Court of Appeals applied a flexible
interpretation to the term in Criscione v City of New York (97 NY2d 152)
where it stated the following at pages 157-158:

[w]e see no reason why a radio call to officers on patrol by a police
dispatcher regarding a 911 complaint should not fall squarely within the plain
meaning of that term. . . . Hence, the requirements of section 114-b were met as
it is undisputed that [the driver/police officer] was operating a patrol vehicle
while responding to a police dispatch to investigate a 911 call when he was
involved in the traffic accident. We hold therefore that [the driver/police
officer] was involved in an 'emergency operation' as a matter of law at the time
of the accident.

The court sees no basis to distinguish the facts of the instant matter from
those present in Criscione. In both cases the police officer involved
was responding to a 911 call received by their respective police agency. The
fact that the officer in Criscione received notice of the 911 call by
radio dispatch while traveling in his patrol car and Trooper Sabarese overheard
the 911 call at the State Police barracks is, in this context, a distinction
without a difference. Likewise, the record makes clear that Trooper Sabarese
was responding to the scene of an accident in a marked state police vehicle at
the time of the collision with claimant's vehicle, a circumstance meeting the
definition of an "emergency operation" contained in Vehicle & Traffic Law
§ 114-b.

For the reasons stated above the Court finds that Trooper Sabarese was
operating an authorized emergency vehicle while engaged in an emergency
operation at the time of the accident and, therefore, liability may not be
imposed upon the defendant unless it is shown that the trooper operated her
vehicle with reckless disregard for the safety of others (Gonyea v County of
Saratoga, 23 AD3d 790; Rodriguez v Incorporated Vil. of Freeport, 21
AD3d 1024).

Claimants next argue that even if the more stringent reckless conduct standard
applies, a question of fact exists as to whether or not the defendant's conduct
was reckless. Under no view of the facts of this case, however, may it be said
that the conduct of the state trooper was reckless. As set forth above,
claimant was well aware of the accident to which the state trooper was
responding and signaled the trooper to proceed. After a period of only five or
six seconds, the state trooper proceeded to complete her turn and the low-speed
impact occurred. The account of the accident by both parties indicates that
the vehicles had proceeded only a few feet prior to impact. The evidence in
this case does not permit the conclusion that the state trooper has "
'intentionally done an act of an unreasonable character in disregard of a known
or obvious risk that was so great as to make it highly probable that harm would
follow' and has done so with conscious indifference to the outcome"
(Saarinen v Kerr, 84 NY2d 494, 501, quoting Prosser and Keeton,
Torts § 34, at 213 [5th ed]). "This standard requires more than a mere
lack of due care under the circumstances, which standard is associated with
ordinary negligence" (Notorangelo v State of New York, 240 AD2d 716, 717,
lv denied 90 NY2d 811). Under the circumstances presented here, the
reckless disregard standard has not been met (cf., Daniels v City of
New York, 28 AD3d 415 [police officer's alleged failure to slow down before
entering intersection against a red light and without lights or siren activated
was not, as a matter of law, reckless conduct]; Gonyea v County of
Saratoga, supra [allegation that police car improperly protruded into
highway after police officer stopped to investigate an accident was not, as a
matter of law, reckless] ; Hughes v Chiera, 4 AD3d 872 [police officer's
conduct was not, as a matter of law, reckless when, after he responded to police
dispatcher using the microphone in the vehicle, he looked down in order to
replace the microphone and rolled into intersection]; Martin v Miller,
255 AD2d 816 [pursuit of driver through streets of Village at a speed of no more
than 40 miles per hour with "wiggle-waggle" lights activated was not, as a
matter of law, reckless]; Gervasi v Peay, 254 AD2d 172 [Going wrong way
down one-way street while pursuing a moped was not, as a matter of law,
reckless]). Even if the state trooper was negligent in proceeding to turn while
her attention was diverted by the passing truck, this "momentary judgment lapse"
does not alone rise to the level of recklessness required of the driver of an
emergency vehicle in order for liability to attach (see, Saarinen v
Kerr, supra, at 502). Nor does the contradictory testimony as to
whether or not Trooper Sabarese's emergency lights were activated create a
material question of fact on the issue of recklessness. Trooper Sabarese was
not proceeding through a red light or intersection (Badalamenti v City of New
York, 30 AD3d 452; Lupole v Romano, 307 AD2d 697) nor was she
operating her vehicle at a high rate of speed (O'Banner v County of
Sullivan, 16 AD3d 950). Instead, the record establishes that Trooper
Sabarese had either not yet entered the roadway or had only partially entered,
that she had been signaled by the claimant who had stopped his vehicle in the
westbound lane of traffic that it was safe to proceed and that her vehicle moved
only a few feet before coming in contact with the claimant's automobile. The
situation presented here is most analogous to that in Szczerbiak v Pilat
(90 NY2d 553) where the Court of Appeals refused to find that a police officer
acted recklessly "by driving 800 feet before attempting to engage his emergency
lights" and Wanderlingh v Higgins (242 AD2d 567, 568) in which the
Appellate Division, Second Department held:

We agree with the Supreme Court's conclusion that on the facts of this case,
and given that the record shows that the alleged pursuit lasted approximately
seven seconds, at 2:35 a.m., in a quiet neighborhood with no traffic, the
conduct the the defendant Deputy Mark Gilmore in failing to activate his siren
or lights during that period of time while traveling at approximately 35 to 40
miles per hour in a 30 miles per hour zone, did not rise to a level of '
"reckless disregard for the safety of others" ' Powell v City of Mount
Vernon, 228 AD2d 572, 573, quoting Saarinen v Kerr, 84 NY2d 494,
501.

For the foregoing reasons the defendant's motion for summary judgment is
granted and the claim is dismissed.